July 7, 1911. The opinion of the Court was delivered by This an action for partition.
Ralph Jones departed this life in 1854, leaving in full force and effect his last will and testament, whereby he disposed of the lands described in the complaint. The sixth clause of the will, which gave rise to this action, is as follows:
"All the rest and residue of my estate, of any kind and description, real and personal, not hereinbefore disposed of, I devise and bequeath to my beloved wife, Sarah H. Jones, for and during the term of her natural life, with the power to dispose of one-third thereof, while living, in any way she may choose to do; the remaining two-thirds thereof, after the decease of my said wife, I devise and bequeath to my daughter, Martha Amanda, to her sole *Page 209 and separate use, during her life, and at her death to such of her issue as she may leave living at the time of her death, to be equally divided among such issue, but if my said daughter should die leaving no issue alive at the time of her death, it is my will that said two-thirds be equally divided, among my next of kin at that time living, according to the statute of distribution of intestate's estates."
The widow Sarah H. Jones died in October, 1891, and Martha Amanda Robertson the daughter mentioned in said clause, departed this life on the 2d of July, 1908. Martha Amanda Robertson had three children, to wit: a son Thomas W. Robertson who predeceased her, and two daughters, Sarah Emeline Rembert and Martha R. Mason who survived her. She also left fourteen grandchildren, and twenty-one great-grandchildren, twenty-eight of whom were descendants of Sarah Emeline Rembert.
At the time of Martha Amanda Robertson's death in 1908, there were in esse four children and one grandchild of Thomas W. Robertson, then deceased.
In discussing the proper interpretation of the word "issue," in the 6th clause of the will, his Honor the Circuit Judge, says:
"Upon well settled principles of construction, it would seem to be clear that, by the term `issue' as used in this will, the testator must be held to have intended, the lineal descendants of Martha Amanda Robertson, whether children or grandchildren, living at the time of her death; and the words, `to be equally divided among such issue' plainly import a division per capita. It must therefore, be concluded that all the lineal descendants of Martha Amanda Robertson, living at the time of her death, are entitled to participate in the division of the `remaining two-thirds' of the estate of the testator, passing under the residuary devise in said `item 6' of the will in question, and that such division must be made among such `issue' of the said Martha Amanda Robertsonper capita and not per stirpes." *Page 210
The Circuit Judge relies upon the following cases, to sustain his conclusion, namely: Rutledge v. Rutledge, Dud. Eq. 201; Corbett v. Laurens, 5 Rich. Eq. 301; Allen v.Allen, 13 S.C. 512. In the case of Rutledge v. Rutledge,supra, it was held that the issue of a child, who died in the lifetime of the surviving tenant for life, took equal shares with the children of the marriage, as they were alike comprehended under the word issue. In the case of Corbett v.Laurens, the Court ruled that, upon the authorities cited inRutledge v. Rutledge, all the descendants of the life tenant, grandchildren as well as children, were included in the term issue and took per capita. But, in neither of these cases, was the question raised, as to the necessity to resort to the statute of distributions, for the purpose of determining who were comprehended under the word issue. And the case ofAllen v. Allen, 13 S.C. 512, while sustaining the conclusion that the issue take per capita, lays down the principle, that when the word "heirs" is used, it is necessary to resort to the statute of distributions, and that those who would not be entitled to take as heirs under the statute, would not have the right to participate in the division of the property. In that case the rule is thus stated:
"The general rule is, that where there is a gift to a class of persons, without any direction as to the proportions in which the individuals of the class are to take, all who can bring themselves within the class, are entitled to participate in the distribution, which must be per capita. But where the gift is to a class, the individuals of which can only be ascertained, by a resort to the statute of distributions, then the provisions of the statute must also be resorted to, for the purpose of ascertaining the proportions, in which the donees are to take, unless, in the instrument, by which the gift is made, a different rule of distribution shall be prescribed.Templeton v. Walker, 3 Rich. Eq. 543. If, therefore, the gift is to a class of persons, designated as heirs of a particular person, then, as it is necessary to resort to the statute, to *Page 211 ascertain who are the individuals composing the class, resort must also be had to the statute to determine how, or in what proportions, such individuals shall take. This is upon the presumption, that the donor having, by implication at least, referred to the statute, as to the persons who are to take, also intended that reference should be had to the statute, to determine the proportions in which they should take, unless he expresses a different intention. But when he prescribes a different mode of distribution, then no such presumption can arise, and the distribution must be made in the manner prescribed." See also Brantley v. Bittle, 72 S.C. 179,51 S.E. 561, and Carolina B. Ins. Co. v. Caldwell, 86 S.C. 331,68 S.E. 640.
It is, however, contended that although it may be necessary, to resort to the statute, when a devise is to the "heirs" or "heirs of the body," no such necessity exists, when the word "issue" is used by the testator. In determining this question, it will be well to state the reasons upon which the rule is founded, requiring that those words be interpreted in the light of the statute. Chancellor Harper in Lemacks v.Glover, 1 Rich. 141, used this language:
"In England, when the term heirs or heirs of the body is taken to mean a class of persons, these cannot, in any manner or respect, take as heirs or heirs of the body. Whether construed children, issue or descendants, next of kin, etc., they must be always different persons from the heirs: not so with us."
In the case of Templeton v. Walker, 3 Rich. Eq. 543, it is said: "Our act of 1791 is an act of descents as well as distributions, and determines at once who shall be the heirs of the real estate of an intestate, and the distributees of his personality." "The term heirs is inapplicable to the succession to personal estate, and even as to real estate, we have no other heirs except haeredes facti of our statute of distributions.Seabrook v. Seabrook. In the case under consideration, the Court of appeals in equity, could not have attained *Page 212 the conclusion that the `heirs of the body' of the tenant for life took as purchasers, within the rules as to the remoteness of limitations, otherwise than by construing these terms to mean the descendants of the tenant for life, living at the time of her death, or something equivalent. No one can take asheirs of the body of another, unless he fulfills the description,and is not only such a person as would take the realestate of that other under our act of distributions, but likewisea lineal descendant." (Italics ours.) The Court also says: "We do not go to the statute to discover who are children, next of kin, etc., but we are obliged to look there to find out who are heirs of the body, descendants or relations entitled to take; and in the cases which actually occur, we commonly find them, not strictly a class but individuals standing in various degrees of kindred to the intestate or first taker, and entitled to unequal shares of the estate." The rule is thus stated in Duke v. Faulk, 37 S.C. 255,16 S.E. 122:
"When the words, `heirs of the body,' occur in a devise, accompanied by the words, `share and share alike,' or `equally,' or `in equal parts,' or kindred words, and also the words, `their heirs, executors, administrators, and assigns,' then we must look to the statute of distributions of our State, for the parties who shall answer the description, and therefore, take the devise, but that the method of distribution, is fixed by the devise itself to be per capita, and not per stirpes, and that the estate is one of purchase, and not of descent. It seems to us, that the `heirs of the body' must be persons,not only who answer the requirement of lineal descendantsof the parent stock, but, also, such persons who would stand,at the date of the death of the life tenant, as an heir, underthe provisions of our statute of distributions." (Italics ours.) Continuing, the Court in commenting on the case ofLemack v. Glover, 1 Rich. Eq. 141, used this language:
"The will of Peter Sinkler, gave the use of certain property to his sister, Jane Glover, for life; Mrs. Glover, at the *Page 213 time of her death, had but one child, Dr. Glover; testator, after the death of the life tenant (Mrs. Glover) bequeathed such property `to the heirs of her body, to them and their heirs and assigns, forever.' Mrs. Glover died fifty-one years after her brother's death. She had four other children born to her, all of whom, but one (Mrs. Lemacks) died before Mrs. Glover, the life tenant, and all were survived by children. The question was made as to the distribution. It was held, that Dr. Glover took one share, Mrs. Lemacks one share, and each grandchild who was the child of a deceased child, took one share each. Both Mrs. Lemacks and Dr. Glover had children, but they were denied participation in the estate. Why? Because, at the death of Mrs. Glover, the life tenant, although her lineal descendants, they were nother heirs, under our statute of distributions; their respective parents, Dr. Glover and Mrs. Lemacks, were alive, and were such heirs." (Italics ours.) The case of Kerngood v.Davis, 21 S.C. 183, shows that it is necessary to resort to the statute of distributions, when the devise is to heirs of the body. In that case the Court says:
"The terms of the devise here being `to heirs of the body,' imposed the necessity of referring to the statute, to ascertain who were such `heirs,' and if the devise had stopped there, the children of Henry W. would undoubtedly have taken, in the manner prescribed by the statute. That is to say, they would have represented their father, and taken together perstirpes his share — one-seventh part of the estate, — besides their distributive portion of the share of their deceased aunt, Carolina. But the superadded words, `share and share alike,' imply equality of division, and we think made the exceptional case `when the instrument creating the gift, indicates the intention of the donor.'" Citing Templeton v.Walker, 3 Rich. Eq. 543; Allen v. Allen, 13 S.C. 531. InDeveaux v. Deveaux, 1 Strob. Eq. 283, it is said:
"The first duty is to ascertain, how many of the claimants before the Court, come within the description given in the *Page 214 will; and the second is, to discover whether all who do come within the description, can be allowed, by the rules of law, to partake of the bounty intended. These are very distinct,enquiries, though often, confounded." (Italics ours.)
The words "heirs of the body" and "issue" are generally equivalent in a will. Whitworth v. Stuckey, 1 Rich. Eq. 404. "Issue" is a word of limitations, and not less extensive in its import, than the words "heirs of the body." Williams v. Cause, 83 S.C. 265, 65 S.E. 241; Arledge v.Arledge, 86 S.C. 237, 68 S.E. 549.
The foregoing authorities show, first, that it is necessary to resort to the statute, when the devise is to the heirs or heirs of the body; that the words "heirs of the body" and "issue" have practically the same import in a will; that no good reason can be assigned why the necessity is not as great to resort to the statute, in a case where the gift is to the "issue," as when it is to "heirs of the body." Therefore, only those grandchildren, and great-grandchildren of Martha Amanda Robertson, whose parents were not in esse, at the time that Martha Amanda Robertson died, are to be construed as issue in contemplation of law; and, those alone who would have taken under the statute, are embraced within the term "issue."
The exceptions raising this question are sustained.
The next question that will be considered is, whether the power conferred upon Sarah H. Jones, to dispose of one-third of the real and personal property, while living, in any manner she may choose to do, was properly executed.
The lands in question embrace two tracts — one containing 1,055 acres, more or less, known as the Home Place, and the other containing about 496 acres, known as the Piney Woods Place. On the 26th of June, Sarah H. Jones Executed an instrument of writing in the form of a deed, whereby she undertook to convey to Sarah Emeline Rembert, *Page 215 her daughter, the Home Place in manner and form as follows:
"I, Sarah H. Jones, * * * in consideration of the sum of one dollar to me in hand paid by Sarah Emeline Rembert, * * * and of the natural love and affection which I bear to the said Sarah Emeline Rembert and her children * * * have granted, bargained, sold and released, and by these presents do grant, bargain, sell and release unto the said Sarah Emeline Rembert all my right, title and interest in all that piece, parcel or tract of land, * * * containing one thousand and fifty-five acres, more or less, being the same tract of land wherein an interest was devised to me by my husband, Ralph Jones, in his last will and testament," thehabendum and tenendum clause of this instrument being: "To have and to hold all and singular the said premises, from and after my death, unto the said Sarah Emeline Rembert, for and during the term of her natural life, and after her death, to such of her issue as she may leave living at the time of her death, their heirs and assigns, forever," and the warranty clause thereof, being: "And I do hereby bind myself and heirs, executors and administrators to warrant and forever defend, all and singular the said premises, unto the said Sarah Emeline Rembert and her issue, from and against me and my heirs, and all other persons lawfully claiming or to claim the same or any part thereof."
The rule as to the execution of a power, is thus stated inBlagge v. Miles, 1 Story 426: "The authorities on this subject, may not all be easily reconcilable with each other, but the principle furnished by them, however occasionally misapplied, is never departed from; that if the donee of the power, intends to execute the power, that intention, however, manifested, whether directly or indirectly, positively or by just implication, will make the execution valid and operative. I agree that the intention to execute the power must be apparent and clear, so that the transaction is not fairly susceptible of any other determination. If it is doubtful, *Page 216 under all the circumstances, then, that doubt will prevent it, from being deemed an execution of the power."
In that case Mr. Justice Story stated, as the result of the English authorities, that three classes of cases, have been held sufficient to manifest an intention to execute the power: (1) where there has been some reference in the deed or other instrument to the power; (2) or a reference to the property, which is the subject, upon which it is to be executed; (3) or where the provision in the deed or other instrument, executed by the donee of the power, would otherwise be ineffectual, or a mere nullity; in other words, it would have no operation except as an execution of the power. See alsoBilderback v. Boyce, 14 S.C. 428; Moody v. Tedder, 16 S.C. 557;Lee v. Simpson, 10 Sup. Ct. Rep. 631.
The foregoing language is quoted with approval in Mims v. Chandler, 80 S.C. 460, 61 S.E. 968.
Conceding that the words "being the same tract of land, wherein an interest was devised to me by my husband Ralph Jones, in his last will and testament," have no reference to the said power, nevertheless, they have reference to the property, which was the subject upon which the power was intended to operate; and, the deed would be ineffectual to convey all the "right, title and interest" of Sarah H. Jones in the land, if the execution of her deed cannot be referred to the power, contained in said will.
We deem it only necessary to cite the following authorities, to sustain the proposition, that the reservation of a life estate by the grantor, did not invalidate the deed as an attempt to convey a freehold to commence in futuro, it being effectual as a covenant to stand seized to uses: Chancellor v.Windham, 1 Rich. 161; Kinsler v. Clark, 1 Rich. 170; Dinkins v. Samuel, 10 Rich. 68; Cribb v. Rogers, 12 S.C. 564;Jacobs v. Ins. Co., 52 S.C. 110, 29 S.E. 533; Summer v.Harrison, 54 S.C. 353, 32 S.E. 572; Cook v. Cooper, 59 S.C. 560,38 S.E. 218; Merck v. Merck, 83 S.C. 329,65 S.E. 347. *Page 217
The next assignment of error, is, because the Circuit Judge permitted the plaintiffs to amend their complaint, so as to allege damages as the result of waste committed by Ruth Mason.
Motions to amend are addressed to the discretion of the Circuit Judge, and his rulings are not the subject of appeal, unless there is an abuse of discretion, which has not been made to appear in this case.
The foregoing conclusions, dispose of all questions presented by the exceptions, except those relating to the accountability of the plaintiff Sarah Emeline Rembert, for rents of the Home Place.
The appellant's attorneys have failed to satisfy this Court, that the preponderance of the testimony is against the findings of facts by the Circuit Judge, touching this question.
Judgment modified.
MR. JUSTICE WOODS. I dissent, and think the judgment of the Circuit Court should be affirmed, for the reasons therein stated.